Petitioner,
Jermaine Jones (“Jones” or
“Petitioner”), brings this pro se
petition for habeas relief under 28 U.S.C. § 2255,
asserting twelve ineffective assistance of counsel claims
against his counsel who represented him for trial and
sentencing. For the foregoing reasons, this Motion to Vacate,
Set Aside, or Correct Sentence, [Dkt. 1], is DENIED.

Background

On May
20, 2010, Mr. Jones was arrested in Florida for charges
stemming from the initial Indictment issued on April 1, 2010.
See United States v. Williams, Case No. 10-cr-00080
(VLB) (hereinafter “Williams”), [Dkt. 1
(Sealed Indictment)]. The Indictment charged Mr. Jones and
his two co-defendants, Sheikera Williams and Michael Jones,
with 70 counts of bank fraud in violation of 18 U.S.C. §
1344, one count of conspiracy to commit bank fraud in
violation of 18 U.S.C. § 1349, and three counts of
aggravated identity theft in violation of 18 U.S.C. §
1028A. At the arraignment on June 29, 2010, Mr. Jones entered
a plea of not guilty and was appointed Frank Riccio, Jr.
(“Attorney Riccio”) as CJA counsel. See
Williams, [Dkt. No. 13 and 14 (Attorney Appearance)].
Mr. Jones was ordered detained.

After
several continuances, the trial was ultimately scheduled for
November 2011. Co-defendant Williams pleaded guilty on
October 3, 2011. See Williams, [Dkt. No. 104 (Change
of Plea Hearing)]. A Superseding Indictment was issued on
October 11, 2011, which decreased the total counts and
instead included seven counts of bank fraud, one count of
conspiracy to commit bank fraud, and seven counts of
aggravated identity theft, all in violation of the same
statutes as previously stated. See Williams, [Dkt.
No. 115 (Superseding Indictment)].

The
trial began on November 2, 2011 and the jury rendered its
verdict on November 17, 2011: guilty on all counts. See
Williams, [Dkt. No. 182 (Jury Verdict)]. Mr. Jones was
sentenced on May 16, 2012 and received 216 months'
imprisonment on the bank fraud and conspiracy counts to run
concurrently; 24 months' imprisonment on the aggravated
identity theft counts to run consecutive to the 216 months;
60 months' supervised release; a special assessment of
$1, 500.00; and $237.790.00[1] payable at a rate of not less
than $25.00 per week. See Williams, [Dkt. No. 245
(Judgment)].

By and
through Attorney Riccio, Mr. Jones appealed his conviction
and sentence. See Williams, [Dkt. No. 238 (Notice of
Appeal)]. The Second Circuit affirmed the conviction and
sentence in summary order filed February 26, 2014. See
Williams, [Dkt. No. 291 (Mandate)]. Specifically, the
Second Circuit upheld his conviction for failure to
demonstrate insufficient evidence at trial, ruling, “In
short, plentiful evidence was presented at trial of
Jones's intent to join a conspiracy to commit bank fraud,
his intent to commit the substantive crime of bank fraud, and
his knowledge that the means of identification at issue
belonged to another person.” Id. at 4. In
addition, the Second Circuit upheld his sentence and found
that this Court did not err in (1) calculating the loss
amount pursuant to § 2B1.1(b)(1), (2) applying a
two-level enhancement for “sophisticated means”
under § 2B1.1(b)(10), and (3) applying a four-level
enhancement for 50 fifty or more victims pursuant to §
2B1.1(b)(2)(B). See Id. at 6-7. Thereafter, Mr.
Jones timely filed this habeas petition before the Court.

Legal
Standard

Section
2255 enables a prisoner is federal custody to petition a
federal court to vacate, set aside, or correct the sentence.
28 U.S.C. § 2255(a). Relief under Section 2255 is
generally available “only for a constitutional error, a
lack of jurisdiction in the sentencing court, or an error of
law or fact that constitutes a fundamental defect which
inherently results in complete miscarriage of justice.”
Graziano v. United States, 83 F.3d 587, 590 (2d Cir.
1996) (internal quotation marks and citation omitted).
Section 2255 provides that a district court should grant a
hearing “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief.” 28 U.S.C. § 2255(b).

Claims
for ineffective assistance of counsel are analyzed under the
two part test established in Strickland v.
Washington, 466 U.S. 668 (1984). To prevail, a movant
must both allege facts demonstrating that
“counsel's representation fell below an objective
standard of reasonableness” and that “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 687-88, 694. As
to the first showing, a movant must demonstrate that
counsel's performance “amounted to incompetence
under ‘prevailing professional norms'” rather
than demonstrating that the performance “deviated from
best practices or most common custom.” Harrington
v. Richter, 562 U.S. 86, 105 (2011) (quoting
Strickland, 466 U.S. at 690). As to the second
showing, a movant must demonstrate “a probability
sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.

Analysis

Mr.
Jones brings 12 ineffective assistance of counsel claims,
which raise instances that occurred during both trial and
sentencing. The Court addresses each claim in turn.

I.
Failure to Raise a Batson Challenge

Mr.
Jones claims the jury pool included approximately five
African Americans and the Government used its peremptory
challenges to strike all but one of these individuals. The
use of peremptory challenges, Mr. Jones contends, was done
“in a systematic racial[ly] mot[i]vated manner to
[e]nsure that neither one of the African-American prospective
jurors were actually seated on the jury.” [Dkt. 1-1
(Petitioner's Mem. Law) at 8]. As a result, the jury was
comprised entirely of white people, and Mr. Jones argues
counsel acted deficiently in failing to object to the jury
composition “[i]n light of the [G]overnment's
theory of the case, that Movant sought out, and only used,
white females to commit the crimes for which he was on trial
for. . . .” Id.

The
Government disputes the validity of Mr. Jones's
Batson challenge claim for the primary reason that
he fails to establish a prima facie case of
purposeful discrimination. [Dkt. 14 (Gov. Response) at 17].
The Government points out that Mr. Jones does not cite the
transcript or another document identifying the demographics
of the venire or the Government's peremptory strikes.
Even if he were to satisfy the prima facie case, the
Government contends he nonetheless fails to establish
prejudice. Id. at 18.

Batson
v. Kentucky, 476 U.S. 79 (1986) created a three-step
procedure for courts to determine “whether a peremptory
strike has been exercised in a racially discriminatory
manner.” United States v. Diaz, 176 F.3d 52,
76 (1999). First, a court must determine whether the
petitioner makes out “a prima facie showing
that the prosecution has exercised its peremptory strike on
the basis of race.” Id. If defendant satisfies
the first step, the court must then evaluate “whether
the government has satisfied its burden of coming forward
with a race-neutral explanation for striking the juror in
question.” Id. If so, the court evaluates
“whether the defendant has carried his burden of
persuasion of proving purposeful discrimination.”
Id.

There
are several ways in which a petitioner can make a prima
facie showing of racial discrimination. A court should
consider “how many members of the cognizable racial
group are in the venire panel from which the petit jury is
chosen, the pattern of strikes against racial group jurors in
the particular venire, the prosecutor's statements and
questions during selection, as well as any other relevant
circumstances.” Tankleff v. Senkowski, 135
F.3d 235, 249 (2d Cir. 1998) (addressing prima facie
showing in the Powers context). “When the
asserted prima facie case is based upon the use of strikes to
exclude all or nearly all of the members of a particular
racial group, the record need only include how many members
of that group were in the venire, and how many of those were
struck.” Jones v. West, 555 F.3d 90, 99 (2d
Cir. 2009).

Mr.
Jones has not provided the Court with any evidence supporting
his claim. Nonetheless, the Court independently assessed the
venire documents kept by the Clerk. The jury pool contained
only two individuals who identified as African American. The
first person was randomly assigned pool number 39, and the
Court, not the Government, struck him for cause. The second
person was randomly assigned pool number 64, and she was
chosen as the third alternate. It is worth noting the twelfth
juror was assigned pool number 49, and therefore the random
nature of the jury selection process essentially made it
impossible for the alternate to have been picked as a juror
given she was questioned 15 people later. The Court also
notes the Government used peremptory challenges on eight
people, seven who were listed as White and one who was listed
as Other. One chosen juror was also listed as Other. The
objective evidence does not support a finding that the
Government's actions were racially motivated or that
Attorney Riccio acted below an objective standard of
reasonableness in failing to object to petit jurors having
been stricken. Neither Mr. Jones nor the record offer any
factual support for this claim and therefore a hearing is not
warranted. See Strickland, 466 U.S. at 687-88.

II.
Failure to Object to Discovery

Mr.
Jones claims the Government withheld exculpatory evidence as
demonstrated by the changes in the Superseding Indictment,
which reduced the number of Defendants from three to two and
the number of bank fraud counts from 74 to seven. [Dkt. 1-1
at 12-13]. Specifically, Mr. Jones believes the Government
withheld all discovery pertaining to Counts 9, 11, 13 and 15
of the Superseding Indictment. Id. The Government
maintains that it “provided early and fulsome discovery
in this case, beginning in July 2010, ” and that Mr.
Jones's characterization demonstrates a misunderstanding
of the discovery process rather than any potential
misconduct. See [Dkt. 14 at 19].

In
Brady v. Maryland, 373 U.S. 83 (1963), the United
States Supreme Court established the requirement to disclose
all evidence that could be considered exculpatory or bearing
on a defendant's innocence or guilt. The Government's
obligations under Brady are well-established. The
prosecution has a constitutional duty to disclose evidence
favorable to an accused when such evidence is material to
guilt or punishment. Id. at 87. This duty covers not
only exculpatory evidence, but also information that could be
used to impeach a key government witness. See Giglio v.
United States, 405 U.S. 150, 154 (1972). Brady
does not, however, require the prosecution to disclose
all exculpatory and impeachment evidence; it need
disclose only that, which “if suppressed, would deprive
the defendant of a fair trial.” United States v.
Bagley, 473 U.S. 667, 675 (1985). In the context of
Brady, a defendant is deprived of a fair trial only
where there is a reasonable probability that the
government's suppression affected the outcome of the
case, see Id. at 682, or where the suppressed
evidence “could reasonably be taken to put the whole
case in such a different light as to undermine confidence in
the verdict, ” Kyles v. Whitley, 514 U.S. 419,
435 (1995).

Mr.
Jones has failed to identify any evidence withheld by the
Government, much less any evidence that would have changed
the outcome of the trial and the withholding of which thus
deprived him of a fair trial. It appears as if the evidence
Mr. Jones challenges was not even “favorable to the
accused” as his position is the Government
“failed to disclose any discovery whatsoever to support
its inclusion of Counts 9, 11, 13, and 15 of the Superseding
Indictment. . . .” [Dkt. 1-1 at 13]. The Government
avers that it timely disclosed all discovery beginning in
June 2010, which relate to the Superseding Indictment filed
October 2011.[2]See [Dkt. 14 at 22]. The filing
of a Superseding Indictment, which reduced the total number
of counts and adjusted the nature of the counts, does not
inherently mean discovery was withheld. Mr. Jones clearly has
not met his burden to establish deficient performance because
he has not alleged any facts demonstrating how the absence of
an objection on these grounds means counsel's performance
fell below an objective standard of reasonableness. See
Strickland, 466 U.S. at 687-88; Lewis v.
Feliciano, No. 3:09cv20171 (DJS), 2012 WL 1247264, at *9
(D. Conn. Apr. 13, 2014) (stating that “[a]bsent any
indication as to what the witnesses would have stated or what
the evidence would have shown, Lewis failed to meet [his]
burden” of demonstrating deficient performance on
Brady grounds). Therefore, the Court need not
address the prejudice prong.

III.
Failure to File Motion to Sever

Mr.
Jones criticizes defense counsel's failure to file a
motion to sever his case from that of his co-defendant,
Michael Johnson. According to Mr. Jones, severance would have
been essential because he stopped participating in the
conspiracy after his arrest and detention. Severance, the
Government contends, is not warranted simply because a
defendant did not participate in the entire conspiracy,
because the critical question is whether a joint trial
prejudiced the movant and Mr. Jones has not addressed this
factor. See [Dkt. 14 at 22].

Rule 14
of the Federal Rules of Criminal Procedure provides that
“[i]f the joinder of offenses or defendants in an
indictment . . . appears to prejudice a defendant or the
government, the court may order separate trials of counts,
sever the defendants' trials, or provide any other relief
that justice requires.” Fed. R. Crim. P. 14(a). There
is a clear preference for a joint trial where “the
defendants are alleged to have participated in a common plan
or scheme.” United States v. Fazio, 770 F.3d
160, 166 (2d Cir. 2014) (citing United States v.
Salameh, 152 F.3d 88, 115 (2d Cir. 1998)).

“[I]t
is well-settled that withdrawal from a conspiracy is an
affirmative defense for which the defendant bears the burden
of proof at trial.” United States v. Leslie,
658 F.3d 140, 143 (2d Cir. 2011). A conspirator's
membership in a conspiracy is presumed to continue until he
affirmatively withdraws or the conspiracy ends. United
States v. Flaharty,295 F.3d 182, 192 (2d Cir. 2002).
The defendant has the burden of proving withdrawal.
United States v. Berger, 224 F.3d 107, 118 (2d Cir.
2000). Here, Mr. Jones fails to establish that his
involuntary incapacitation even constitutes withdrawal.
Evidence of imprisonment can, but does not necessarily,
constitute withdrawal from a conspiracy. See
Flaharty, 295 F.3d at 192-93. To withdraw from a
conspiracy, a person must take some affirmative action either
by “the making of a clean breast to the authorities, or
communication of the abandonment in a manner reasonably
calculated to reach co-conspirators.” United States
v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964);
Berger, 224 F.3d at 118 (same). To withdraw, an
individual must not take any subsequent acts to promote the
conspiracy. United States v. Basciano, 634 F.
App'x 832, 834 (2d Cir. 2015). At trial, evidence that
identity documents stolen by Jones was used by his
co-conspirators when he was not present.

Severance
is not automatic in circumstances where a defendant is
incarcerated during the conspiracy, particularly where there
is substantial evidence of the defendant's involvement in
the conspiracy prior to incarceration and withdrawal relates
“only to the improper use against him of subsequent
acts and declarations of coconspirators.” See
United States v. Agueci, 310 F.2d 817, 838-39 (2d Cir.
1962); United States v. Bless, 422 F.2d 210, 213 (2d
Cir. 1970). A court is to sever defendants “only if
there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or
innocence.” United States v. Astra Motor Cars,
352 F.Supp.2d 367, 369-70 (E.D.N.Y. 2005) (quoting Zafiro
v. United States, 506 U.S. 534, 539 (1993)). Such a
determination is left to the sound discretion of the court.
Zafiro v. United States, 506 U.S. at 539.

Mr.
Jones has not presented the Court with any evidence that he
was denied a fair trial. After reviewing the trial
transcripts, the Court finds that Defendants participated in
a “common scheme or plan, ” Fazio, 770
F.3d at 166, and that there was substantial evidence of his
involvement in the conspiracy, see Agueci, 310 F.2d
at 838-39.

Moreover,
Mr. Jones's withdrawal was relevant “only to the
improper use against him of subsequent acts and declarations
of coconspirators, ” see Agueci, 310 F.2d at
838-39, which he freely acknowledges as relevant to the
length of time he participated in the conspiracy,
see [Dkt. 5 (Jones Decl.) ¶ 15]. Mr. Jones
points to no improper use of the evidence.

The
Second Circuit's mandate on Mr. Jones's appeal
concluded that “plentiful evidence was presented at
trial” of Mr. Jones's intent to join the conspiracy
and commit the substantive offenses with the knowledge that
the means of identification belonged to other people.
See [Dkt. 291 at 4].

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Attorney
Riccio declares that he considered severance and advised Mr.
Jones that courts typically deny motions to sever.
See [Dkt. 19 (Riccio Aff.) at 7 of PDF]. Counsel did
not act unreasonably when he elected not to move to sever
defendants in light of the facts of the case, his
understanding of prevailing ...

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